Regulations Amending the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases): SOR/2021-78
Canada Gazette, Part II, Volume 155, Number 9
SOR/2021-78 April 8, 2021
FIRST NATIONS ELECTIONS ACT
P.C. 2021-265 April 8, 2021
Whereas the Administrator in Council is of the opinion that there is an outbreak of a communicable disease, namely coronavirus disease 2019 (COVID-19) and the introduction or spread of COVID-19 poses an imminent and severe risk to public health in Canada;
Whereas some First Nations had begun or were about to begin the process of electing their chief and councillors;
Whereas some First Nations have cancelled or postponed elections to avoid the introduction or spread of COVID-19 and some do not or will not have a council in place at the end of the tenure or term of the chief and councillors;
And whereas it is necessary to ensure continuance of governance of First Nations during the outbreak and spread of COVID-19;
Therefore, His Excellency the Administrator of the Government of Canada in Council, on the recommendation of the Minister of Indigenous Services, makes the annexed Regulations Amending the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) pursuant to
- (a) section 73 and subsection 76(1) of the Indian Act footnote a; and
- (b) section 41 of the First Nations Elections Act footnote b.
Regulations Amending the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases)
1 Paragraph 2(3)(c) of the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) footnote 1 is replaced by the following:
- (c) the electoral officer and any deputy electoral officers are removed from office when the documents and envelopes have been destroyed in accordance with paragraph (b); and
2 Paragraph 3(3)(c) of the Regulations is replaced by the following:
- (c) the electoral officer and any deputy electoral officers are removed from office when the documents, ballot packages and ballots have been destroyed in accordance with paragraph (b); and
3 Section 5 of the Regulations and the heading before it are repealed.
4 Section 6 of the Regulations is replaced by the following:
Limitation — extension of tenure or term
6 (1) A tenure of office or term of office of a chief and councillors of a First Nation must not be extended under subsection 2(1) or 3(1) by more than six months or beyond December 31, 2021. The tenure or term must not be extended more than twice.
(2) Despite subsection (1), a tenure of office or term of office may be extended once on or after April 9, 2021 if it was extended twice before that day. The tenure or term must not be extended by more than six months or beyond December 31, 2021.
5 Section 8 of the Regulations is replaced by the following:
8 These Regulations are repealed on October 8, 2021.
Coming into Force
6 These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
To deal with the challenges and risks associated with conducting elections during the COVID-19 pandemic, the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) [the Regulations] came into force on April 8, 2020. They allow First Nations chiefs and councillors to postpone or cancel elections for a period of up to six months, with a potential second extension of up to six months. The Regulations provide a clause for their repeal on the one-year anniversary of their coming into force, i.e. April 8, 2021.
In the current context of the continued spread of COVID-19 and the highly contagious variants that have emerged since the Regulations were first made, there are concerns regarding the elections of chiefs and councillors scheduled over the next few months, as public health experts are still recommending the use of social distancing and avoidance of large gatherings wherever possible. Between April and October 2021, 113 elections under the Indian Act, the First Nations Elections Act or a community election code must be held. This includes 48 elections under the Indian Act, 20 under the First Nations Elections Act and 45 under custom election codes. Failure to extend the Regulations would mean that First Nations with an upcoming election would either have to move forward with the election during the pandemic and risk the health of vulnerable community members or postpone the election and face a governance gap.
First Nations can elect their leadership (a chief and councillors) pursuant to the Indian Act and the Indian Band Election Regulations, the First Nations Elections Act, their own custom elections code or their constitution as part of a self-government agreement. The election cycles vary and can be as short a duration as two years. Currently, 145 First Nations hold elections in accordance with the election provisions of the Indian Act, and 74 under the First Nations Elections Act. An additional 363 First Nations have community-designed or custom election codes and 38 First Nations select leaders pursuant to constitutions contained in their self-government agreements.
The Regulations were enacted in critical times to prevent the spread of COVID-19 in First Nation communities. The Regulations allow that chiefs and councillors can be maintained in office and can continue to assume their leadership role and ensure continuity of the delivery of essential services to their communities. The Regulations do not require that a chief and councillors with expiring terms postpone or cancel elections. The final decision to do so is within the purview of the First Nation and must be made by a band council resolution that is adopted in the last 90 days of a chief and councillor's mandate.
Since the coming into force of the Regulations on April 8, 2020, a total of 171 elections were held. This figure represents all elections held under the Indian Act (46 elections), the First Nations Elections Act (20 elections) or a custom election code (105 elections). A total of 107 First Nations have postponed their elections since the coming into force of the Regulations, including 43 that have since held an election and 64 that have postponed but have yet to hold their elections.
On September 14, 2020, the Acho Dene Koe First Nation decided to postpone their election due to COVID-19. The First Nation relied on the Regulations and its custom election code in its decision to postpone the election.
On April 1, 2021, in the case of Bertrand v. Acho Dene Koe First Nation and the Attorney General of Canada, the Federal Court (the Court) found that the Acho Dene Koe First Nation Band Council did not have the power to extend its own term of office and that section 4 of the Regulations, related to custom codes, is ultra vires and invalid. The Court agreed with the applicant, Mr. Bertrand, that the Regulations are invalid as they are not authorized by the Indian Act. The Court found that paragraph 73(1)(f) of the Indian Act, which empowers the Governor in Council to make regulations “to prevent, mitigate, and control the spread of diseases on reserves,” does not encompass regulation of elections. The Court found, moreover, that Acho Dene Koe customary law requires elections to take place every three years and does not authorize the council to extend its own term of office.
The Court suspended its declaration of invalidity with respect to the Regulations by 60 days (until May 31, 2021), and has given the parties an opportunity to make submissions with respect to costs. The Government intends to appeal the decision.
- To help protect vulnerable First Nations communities from COVID-19 and its highly contagious variants while addressing any governance gaps should a First Nation choose to cancel or postpone an election during the six-month period.
The Regulations are amended to extend the repeal clause by six months, i.e. to October 8, 2021. The Regulations are also amended to specify that any postponed or cancelled election must be held no later than December 31, 2021, and that no extended term can be past December 31, 2021.
The amended Regulations continue to provide that the term of a chief or councillors can only be extended twice and that each extension must be no longer than six months. However, an amendment has been made to provide an exception for chiefs and councillors whose tenures have been extended twice prior to April 9, 2021. The exception allows the tenure of these chiefs and councillors to be extended one final time for a period not exceeding six months; however, any such postponed elections must be held prior to December 31, 2021, and no extended terms can be past December 31, 2021.
Chiefs and councillors requiring an extension of their tenure of office will be maintained in office and will continue to assume their leadership role and ensure a complete continuity of the delivery of essential services to their communities upon adoption of a band council resolution, within the last 90 days of expiry of their mandates.
In March 2020, the Assembly of First Nations was provided the opportunity to comment on the proposed Regulations. On its own initiative, the Assembly of Manitoba Chiefs also provided comments on the Regulations. Both organizations were in agreement with the regulatory initiative. As the new regulatory proposal extends the existing regulations, no additional consultations were held.
As of February 24, 2021, 107 First Nations have used the Regulations. Since their coming into force, Indigenous Services Canada has received limited correspondence about the Regulations.
The extension of the Regulations was done as an urgent measure to respond to the ongoing pandemic and to facilitate First Nation efforts to contain the spread of COVID-19 in their communities. While no formal consultations were conducted, chiefs and councillors with elections scheduled between April 8, 2021, and October 8, 2021, were notified directly by departmental officials that the Regulations have been extended, and guidance documentation has been made available to these band councils. Departmental officials also remain available for any questions pertaining to the Regulations. Multiple conversations were also held with electoral officers involved in current or imminent electoral processes to ensure safety measures will be enforced, should chiefs and councillors decide to proceed with a scheduled election.
Modern treaty obligations and Indigenous engagement and consultation
There is no potential modern treaty implication, as this initiative responds to the needs and interests of the concerned First Nations. This initiative does not require the Government of Canada to fulfil any consultations/engagement requirements described in a modern treaty.
The extension of the Regulations can only be done via another regulation. Therefore, a non-regulatory option could not be considered.
Benefits and costs
The extension of the Regulations responds to the concerns of First Nations with upcoming elections. First Nations are concerned about holding elections during the pandemic and putting members at risk if required to gather in groups to vote. The extension provides First Nations the option to extend their expiring mandates or to proceed with elections.
There are no monetary costs associated with extending the terms of office for First Nation chiefs and councillors. However, despite the above-mentioned positive impacts, there are some risks. For instance, only a band council resolution is required to notify the Minister of Indigenous Services of a decision to cancel or postpone its scheduled election. As a result, there is no guarantee that decisions to either proceed with the scheduled election or to cancel or postpone it is reflective of the will of the majority of community members. In cases where chiefs and councillors choose to cancel or postpone their elections, some members may wish to proceed with the elections to exercise their democratic right, elect representatives that better meet their interests and priorities or personally run for leadership positions to have a greater impact on community response to the pandemic. Whether or not chiefs and councillors choose to proceed with their elections on the scheduled date or following a postponement, there might be impacts on the rate of voter turnout during these unprecedented circumstances. To mitigate the potential negative impacts related to the extension of the Regulations, the Regulations have strict requirements for the cancellation or postponement of scheduled elections, including a limit on the number of times First Nations can postpone or cancel elections, a sunset clause of October 8, 2021, and requiring elections to be held before the end of 2021.
Small business lens
The small business lens does not apply to this initiative, as there are no associated impacts on small businesses.
The one-for-one rule does not apply to this initiative, as there is no change in administrative burden on businesses.
Regulatory cooperation and alignment
This initiative is not made under a regulatory cooperation work plan.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was made and concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
A gender-based analysis plus (GBA+) was conducted to assess potential positive and negative impacts of the extension of the Regulations on First Nations women, men and gender-diverse members, as well as communities as a whole. The ability to decide whether to cancel or postpone elections pursuant to the Regulations may result in various benefits for First Nations members. For example, immunocompromised First Nations members, including Elders, who are more at risk of experiencing complications from COVID-19 and who would otherwise vote in person, would not be obligated to gather in a large group during the pandemic to participate in an electoral process. Furthermore, it would ensure that the risks of introducing or spreading COVID-19 in First Nations communities are reduced, thereby avoiding additional strain on First Nations infrastructure, and provincial and territorial health care systems.
Canada is currently experiencing a third wave of the COVID-19 pandemic, and variants are exponentially increasing the risk of infection, especially in at-risk, underserved Indigenous communities. The Government of Canada continues to recognize the health risks of holding elections during the COVID-19 pandemic and believes that community leaders continue to need a tool to allow them to make decisions about whether to hold scheduled elections. The Regulations require such a decision to be based on a need to mitigate the ongoing risks from the pandemic. Without the Regulations, First Nations would be obliged to proceed with their scheduled elections during the pandemic or face a governance gap.
The Regulations enable current First Nations leaders to continue their roles as they focus on preventing the spread of COVID-19. In the meantime, the Government will continue to work with community leadership to support pandemic prevention and planning.
Implementation, compliance and enforcement, and service standards
The Regulations Amending the First Nations Election Cancellation and Postponement Regulations (Prevention of Diseases) came into force on the day on which they were registered.
Governance Operations Directorate
Lands and Economic Development
Indigenous Services Canada